Case Name: Sionne v. Nowhere Bar and Grill, et al.

Case No.: 1-14-CV-270518

Defendant Robert Weber (“Weber”) demurs to the Complaint of plaintiffs Robert Sionne and Kristen Sionne (collectively, “Plaintiffs”) on the grounds that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendant Nowhere Bar and Grill, Inc. (“Nowhere Bar and Grill”) moves to strike punitive damages from the Complaint.

I. Weber’s Demurrer

Weber correctly argues that the Complaint contains no factual allegations regarding his conduct or identifying his connection to the action. Plaintiffs have not filed any opposition to Weber’s demurrer. Accordingly, Weber’s demurrer is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

II. Nowhere Bar and Grill’s Motion to Strike

Nowhere Bar and Grill’s request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (c), (d).)

Nowhere Bar and Grill seeks to have the Court strike the exemplary damages attachment from the Complaint. “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal. App. 4th 53, 63, internal citation omitted.)

Plaintiffs allege that defendant Traci Rodrigues, the bartender at Nowhere Bar and Grill, furnished alcohol to an obviously intoxicated minor, Joseph Sionne, who was under 21 years of age, and as a result, Joseph Sionne suffered a fatal injury from a car crash immediately upon leaving Nowhere Bar and Grill. (Complaint, EX-2.) Nowhere Bar and Grill argues that these allegations are insufficient to warrant the imposition of punitive damages. Plaintiffs rely in their Complaint on Business & Professions Code section 25602.1, which authorizes a cause of action to be brought by or on behalf of any person who has suffered injury or death against any person who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person. Section 25602.1, however, makes no mention of punitive damages.

As explained in one case:

The cases interpreting section 3294 make it clear that in order to warrant the allowance of punitive damages the act complained of must not only be wilful in the sense of intentional, but it must also be accompanied by aggravating circumstances, amounting to malice. The malice required implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient; and mere negligence, even gross negligence is not sufficient to justify an award of punitive damages.

(Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894, italics in original.)

Plaintiffs’ bare, conclusory allegation regarding the furnishing of alcohol to Joseph Sionne does not demonstrate anything more than negligence or, at most, gross negligence. Plaintiffs have not alleged facts showing oppression, fraud, or malice.

Even if Plaintiffs had alleged facts showing a right to punitive damages based on the conduct of Traci Rodrigues, there are additional pleading requirements to show that punitive damages are warranted against Nowhere Bar and Grill. As acknowledged by Plaintiffs, Civil Code section 3294 states, in relevant part:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294, subd. (b).)

Plaintiffs contend that they have alleged facts sufficient to establish that the bar owners or managers authorized or ratified the conduct. Plaintiffs cite to Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal. App. 3d 222 and Johnson v. Monson (1920) 183 Cal. 149 for the proposition that, from the facts of employment alone, a jury could infer that the bar owners or managers were aware of the conduct of serving minors and they approved of the conduct, or at a minimum failed to take appropriate action to investigate and correct it. In Kiseskey, however, there were allegations that certain persons making threatening phone calls were the “agents and/or employees” of the defendant and were “acting within the course and scope of said agency.” (Kiseskey v. Carpenters’ Trust for So. California, supra, 144 Cal. App. 3d at p. 235.) In contrast, Plaintiffs in the instant action have alleged no facts in the Complaint regarding the bar owners or managers. The only allegation of conduct by an employee of Nowhere Bar and Grill concerns defendant Traci Rodrigues. (Complaint, EX-2.) With regard to the Johnson case, that case did not involve the imposition of punitive damages; it only related to vicarious liability generally and is, therefore, inapposite.

Since there are no allegations showing that Nowhere Bar and Grill had advance knowledge of the unfitness of the Traci Rodrigues and employed her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are sought, Plaintiffs cannot maintain their claim for punitive damages against Nowhere Bar and Grill. Accordingly, Nowhere Bar and Grill’s motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

The Court will prepare the order.